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					                    Plagiarism, Copyright, Academia and Commerce

                                      Charles Cronin
                                   Columbia Law School
                                 ccroni@law.columbia.edu

                 Presentation given at Colby College, 15 October 2003
                Conference on Information Ethics and Academic Honesty


Introduction

       The sweeping title of my talk “Plagiarism, Copyright, Academia and Commerce”

reflects, I confess, not a successful attempt to weave these overlapping topics into a

coherent half-hour discussion, but rather a retreat into generalities after a realization that

the focus of much of my work that intersects with issues of plagiarism – namely music

copyright infringement (which is oriented very much toward popular music, and the

commercial sector) – is not readily accommodated within a discussion of academic

ethics. And so, in an effort to hew to the subject of today’s discussion, I plan to bandy

about the first three terms of my title for the balance of my talk, but the fourth, the

commercial sphere, and specifically my interest in music copyright infringement we’ll

need to postpone for another time.



       The topic we consider today, academic honesty, is timely indeed, as evidenced by

the spate of articles appearing recently in newspapers and elsewhere, on worrisome

trends in the behavior and attitudes of students toward plagiarism and cheating in their

academic work. Dire statistics, charting, for instance, changes over time in percentages

of students who admit to cheating, suggest a sudden and serious decline in standards of

morality and decency among undergraduates in particular. I’m skeptical of implications
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of growing moral depravity among undergraduates, however, and believe that the

“plagiarism epidemic” – to the extent it exists – is mainly a result of the simple fact that

the web has made plagiarism much easier than it used to be in the print environment.

How so?

       First, with the web it is almost impossible not to find something relevant to one’s

topic. While the quality of the information may be abysmal, using skillful cutting and

pasting, it is now possible to cobble together, over the course of an evening, a term paper,

without even re-keying another’s text.

       Second, because the quantity of information on the web is vast and promiscuous,

and because most interactions on the web are anonymous and done in isolation, there has

developed a general insouciance toward intellectual property rights associated with

digitized information. Simultaneously, the fear of opprobrium for, or even detection of,

inappropriate copying has considerably diminished with the advent of web research.



Copyright and Plagiarism

       Now that I have broached the issue of intellectual property (and, for purposes of

this discussion that means copyright) I should note that the question of academic

plagiarism has spawned an overheated polemic not dissimilar to that evoked by the

question of liability for copyright infringement in the digital era, especially with respect

to filesharing. On this matter we hear, on one hand, from copyright anarchists like John

Perry Barlow, touting shopworn hokum about information wanting to be free. We hear

echoes of this attitude from a distant faction of the copyright anarchists’ camp where we
                                                                                                      3

find literary deconstructionists waxing rhapsodic about hypertexts and appropriationist

art. In her recent piece in Law & Critique, Daniela Carpi writes along these lines:

        In a social context of trust in one’s own progressive possibilities, ‘plagiarism’ is
        demonized as ‘theft and robbery’. Differently, in an era where art is ontologically
        based on a competitive confrontation with preceding tradition, ‘plagiarism’ takes
        on a positive connotation of ability, erudite comparison, insistence upon style and
        form. ‘Plagiarism’ has lost its connotation as linguistic taboo and entered into the
        semantic field of “play, puzzle, creative revision, misprision. [“Misprision” is
        polysemous, and I’m not sure what Carpi is suggesting by it in this context.]


Elsewhere, however, and not exclusively from the commercial sector, we hear of the

essential and still vital role of copyright in providing economic incentives to authors and

creators. In an article discussing recent challenges to the efficacy and legitimacy of

copyright, Jane Ginsburg of Columbia Law School notes:

        Rhetoric has supplied a heavy cudgel in the battering… Consider “sharing.”
        Before Napster, sharing meant giving something up so that others could enjoy the
        object with which the sharer parted…That is also why “sharing” was laudable; it
        implied the selfless improvement of the lot of others. But Napster brought us a
        new kind of “sharing,” one in which recipients could enjoy the giver’s
        munificence, while the giver never had to give anything up…Everyone benefited;
        everyone, that is, except the creators and owners of the copied works.”1


        Plagiarism and copyright infringement both involve the appropriation of another’s

intellectual effort, but they are different concepts in many respects. To return to our

overarching topic of academic honesty, and the specific problem of academic plagiarism,

it might be useful to tease out the differences between these concepts before positing a

few simple suggestions for mitigating academic plagiarism.




1
 Jane C. Ginsburg, “How Copyright Got a Bad Name for Itself,” 26 Columbia Journal of Law & the Arts
61, 63 (2002).
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       Copyright infringement involves the unauthorized copying of copyrightable

material – i.e. original expression, not facts. Copyright law does not require that the

infringer attempt to pass the material off as his own – in fact, in cases of blatant piracy

the infringer often hopes to pass the material off as that of another, i.e. the true author –

as do those engaged in forgery.

       Copyright vests automatically in works of authorship from the moment they are

fixed in any tangible medium of expression, giving the author (and his heirs) the

exclusive right to reproduce, adapt, distribute, perform, and display the work for their life

plus 70 years following the death of the author. The U.S. copyright statute preempts any

attempt by the states to regulate in this area, and all copyright disputes are handled by

federal courts.

       Plagiarism involves taking the product of another’s intellectual work and

misattributing it as one’s own. That the original creator may have authorized such taking

has no effect on whether it constitutes plagiarism. Plagiarism may involve copying

factual or public domain material (e.g. out-of-copyright materials or federal government

publications); it does not necessarily involve taking copyrighted material, and even when

it does, the taking in many of cases involving academic work is not actionable as

copyright infringement because fair use principles would apply.       Plagiarism is neither a

tort nor a crime -- it is an ethical, not a legal offense. Accordingly, courts never handle

plagiarism disputes; academic authorities do so, typically by attempting to interpret and

enforce wispy honor codes.
                                                                                             5

       Let’s suppose I am given an exercise in an Environmental Science course to

compile a list of all the deciduous trees on the Colby campus. My list (assuming it is

correct) contains purely factual, and not copyrightable, information. If my roommate

copies my assignment and turns it in under his name, he has plagiarized my work, but he

is not liable for copyright infringement. My assignment becomes copyrightable only

after it loses its purely factual cast by my adding to it expressive material, like unsolicited

poetic responses to the colors of particular trees, or an idiosyncratic approach to the

organization and presentation of the information. If I grant my roommate permission to

copy my expressive assignment and turn it in as his own, neither of us has violated the

copyright law, although my roommate is responsible for plagiarism, and I have

undoubtedly breached Colby’s policy (I assume one exists) on impermissible

collaboration.

       Like my list of trees, which may have taken hours to compile, answers to statistics

or physics problem sets, completed foreign language grammar worksheets, biology lab

reports, and other factual and quantitative academic work products are offered no

protection under copyright law. In other words, undergraduate work product that is

arguably the most intellectually challenging to produce (it was for me) is provided the

least copyright protection (e.g. lab reports and problem sets). Moreover, while it is the

easiest information to copy, the plagiarism of it is the most difficult to detect.
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A Commercial Response to Academic Plagiarism

       Uncertainties about the legal status of plagiarism, and commonalities between

plagiarism and copyright infringement, have been capitalized upon by those with a vested

interest in promoting the notion of plagiarism as a rampant problem – in particular

commercial ventures like turnitin.com, selling products that purport to detect and

discourage plagiarism. Let’s turn them in.

       Borrowing officious terminology from law and medicine (e.g. “epidemic” of

plagiarism; “crime” of plagiarism) profit-seeking enterprises like this conflate plagiarism

with copyright infringement in a bid to add legal taint and a more threatening tone to

academic plagiarism. The implication from such borrowing is that this is no longer a

matter merely for dithering academic authorities, but also for federal judges and perhaps

prison wardens as well! Astonishing too, at least with the turnitin product, is the fact that

customers are not only charged to use it, but are also compelled in doing so to contribute

to the product’s development by submitting students’ work (much of which is

copyrightable) to the product’s database, thereby making the product potentially more

valuable (which means, in turn, that the merchant can capitalize on this network

externality to charge more for it over time).
                                                                                              7




          Let’s consider a few of the inaccurate statements about plagiarism and copyright

that one finds in the Frequently Asked Questions portion of the turnitin.com site.2



FAQ: What is plagiarism?

ANSWER: Any time you borrow from an original source and do not give proper credit,

you have committed plagiarism and violated U.S. copyright laws

THE TRUTH: False! Copyright law has nothing to do with crediting sources; crediting

an author in no way exonerates one of copyright infringement liability. At the same time,

one can freely use great quantities of expressive material without permission, without

attribution, and without liability for copyright infringement if the use involves a public

domain source, or constitutes a fair use.




FAQ: Can facts be copyrighted?

ANSWER: Yes, in some situations. Any “facts” that have been published as the result of

individual research are considered the intellectual property of the author.

THE TRUTH: False! Title 17 USC Sec102(b) on subject matter of copyright:

          In no case does copyright protection for an original work of authorship extend to
          any idea, procedure, process, system, method of operation, concept, principle, or
          discovery, regardless of the form in which it is described, explained, illustrated, or
          embodied in such a work. [In other words: copyright protects only an author’s
          expression of an idea or arrangement of facts – but never the underlying ideas or
          facts themselves.]

2
    Last consulted October 10, 2003. See http://www.turnitin.com/research_site/e_faqs.html
                                                                                            8




FAQ: What are the punishments for plagiarism?

ANSWER: “Legal Punishments” Most cases of plagiarism are considered misdemeanors,

punishable by fines of anywhere between $100 and $50,000 – and up to one year in jail…

If you can demonstrate…that you reasonably believed what you did was fair use, chances

are that your sentence will be lessened substantially. [emphases added]

TRUTH: False! Plagiarism isn’t a crime of any sort. If turnitin is actually referring here

to copyright infringement and not plagiarism, the possibility of criminal charges arises

only when there is willful infringement and a clear intent to make money at the expense

of the rightful copyright owner (or undermine the owner’s normal revenue stream) -- in

other words, where systematic, large-scale piracy of profitable software or entertainment

is involved. Jail sentences are an issue only in the most egregious cases, and are rarely

imposed.




       I consider products like turnitin.com nice examples of silicon snake oil – smoke

and mirrors mechanical processes that hold the promise of relieving instructors of their

responsibility to take reasonable measures to prevent plagiarism, and to know their fields

and their students well enough to detect it when it occurs.
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Recommendations



       Permit me one parable. Last summer I attended Music at Marlboro concerts in

Vermont (by the way, they are invariably superb). Driving the byways in the area around

Marlboro I brought our ’93 Ford Taurus (since, sadly, deceased) to a sudden stop in front

of an unattended roadside stand stocked with fresh raspberries and a Mason jar with some

cash and a little sign asking customers to help themselves and simply place money owed

in the Mason jar. Not being Hansel, or my wife Gretel, it took little effort for us to

conclude:



       1. Someone invested effort to produce and package this product.

       2. That person expected to keep the product or to be paid for their effort.

       3. I had a moral and legal obligation to pay for any raspberries I took.

       4. Those obligations would hold even if the stand had been placed on the

       Marlboro village green, and not on private property.



       My point, of course, is that one can extrapolate from this vignette involving

tangible property, a consensus as to appropriate modes of conduct involving intangible

property, namely the intellectual work product of another, whether a recording of a

performance by the Spice Girls, or answers to an undergraduate physics homework

problem set. (I realize I’m stretching credulity in mentioning the Spice Girls as a

producer of intellectual work product.) And, I’m confident that my conclusions in
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Marlboro comport with those of law’s “ordinary man” and in no way indicate a too finely

calibrated moral compass.



        About academic plagiarism I think most of us, undergraduates included, would

subscribe to Justice Potter Stewart’s oft-mentioned comment about pornography – “I

know it when I see it,” – and I would like to wrap up with a few suggestions as to how we

might mitigate the potential for academic plagiarism, particularly by undergraduates, in

the digital era:



1. Exams

        For lecture courses give proctored, closed book exams. Proctors aren’t

demeaning, they’re reassuring; and nothing inspires student panic more than open book

exams. I would recommend that undergraduate instructors take their cue from legal

education where exams are the norm in most courses, and where plagiarism and cheating

is generally not a serious problem, in part because the stakes are so high – different

grades mean different jobs and salaries – and tolerance for it so low.



2. Term Papers.

        Reserve paper assignments for seminars where instructors can work on

progressive drafts of students’ work, and thereby become familiar with their students’

styles. Incorporate oral presentations into seminars as much as possible. A piano teacher

once rightly told me: “if you can sing it, you can play it; I’ve found that if you can speak
                                                                                          11

it, you can write it.” In any event, when you are on your feet, compelled to use your own

words, plagiarism can’t help.



3. Pen and paper. (I realize that I am going out on a limb here…)

       The low-tech solution. In the late ‘80s, when I worked in the Copyright Office,

Daniel Boorstein, the Librarian of Congress at the time, mentioned in an informal

presentation that he could always identify something written on a word processor because

it was twice as long as it should have been. (I think he used a manual Smith Corona, but

was spectacularly prolific). As recently as 10 years ago when I was a graduate student in

musicology, fellow students, foreigners in particular, would turn in handwritten term

papers. Requiring handwritten drafts won’t necessarily obviate plagiarism, but at a

minimum it will ensure that those who do plagiarize will learn something in the process

of hand copying – which they will not if they cut and paste electronic text. Handwritten

documents have an aura of intimacy, immediacy and authenticity that is entirely lost in

typeface.



Conclusion

       Plagiarism by students may be a significant, and possibly growing, concern, but

while we’re discussing academic honesty, it might be worth mentioning another ethical

quandary in academia that shifts our attention from students to instructors – namely

favoritism. When I was a graduate student I once met with a group of undergraduates

seeking advice on academic careers in musicology. The only meaningful advice (other
                                                                                                    12

than “get out while you can!”) came from a fellow graduate student whose dead-pan

recommendation was: “sleep with the faculty.”

        Her sensational suggestion had the ring of truth to it. My impression is that the

covert advancement of students (graduate students mainly) based upon personal

characteristics and extra-academic relationships (frequently sexual) is as demoralizing as

is plagiarism to students who are not personally entangled with instructors while enrolled

in college or university. (I recall reading years ago, from that literary treasure, Mad

Magazine, a riff on “people not to trust,” that sagely included on the list “classmates who

talk to the teacher after class.”) Anonymous grading at law schools addresses this

problem, and I wish such policies were adopted by educators in other disciplines.

        I was heartened to read of the University of California’s draconian

“zero–tolerance” policy toward faculty-student romances, realizing that the greatest

beneficiaries of it will not necessarily be those students whose romantic entanglements

with faculty members have gone sour, but may be, in fact, the majority of students who

do not become personally involved with their instructors.3 But, this is a matter for

another conference, and so I’ll conclude with thanks to you for your kind attention, and to

Michael Hanrahan in particular for his excellent work, and for inviting me to participate

in the discussion today.




3
 Sara Rimer, “Love on Campus: Trying to Set Rules for the Emotions,” New York Times, Sec. B, p. 8
(October 1, 2003).

				
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